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Court of Criminal Appeal 21 November 2018

Brown v R

[2018] NSWCCA 257

Also reported as (2018) 99 NSWLR 151
Theft & propertyPublic order & justice offences

Citation: Brown v R [2018] NSWCCA 257
Court: Court of Criminal Appeal
Date: 21 November 2018
Judges: Payne JA at [1], Johnson J at [49], N Adams J at [99]

Background

The applicant, a non-English speaking foreign national, was sentenced in the District Court to an aggregate term of 7 years and 10 months imprisonment after pleading guilty to 12 break, enter and steal offences. He had entered Australia on a false passport specifically to commit residential burglaries on behalf of an overseas crime syndicate, using a calculated methodology that included targeting victims by ethnicity and taking extensive precautions to avoid detection. Stolen property worth approximately $394,000 was recovered from his premises, and he had already remitted around $118,000 in cash overseas.

At the sentencing hearing, no evidence was called on the applicant's behalf. A pre-sentence report was available on the day and noted that the applicant had not expressed remorse for his actions or for his victims. The sentencing judge found the offending to be serious in the extreme, assessed the applicant as having a high risk of reoffending and poor prospects for rehabilitation, and dismissed an unsworn expression of remorse made during a police interview as empty words.

The applicant sought leave to appeal against sentence on the sole ground that his legal representatives had failed to obtain instructions from him as to whether he wished to give evidence, had not properly advised him of his right to do so, and had not called him to give evidence despite his expressed wish to do so.

Legal Issues

  • Whether the conduct of the applicant's legal representatives in failing to obtain instructions about, and facilitate, the applicant giving evidence at the sentencing hearing amounted to a miscarriage of justice.
  • Whether there was a significant possibility that the failure to call the applicant to give sworn evidence of remorse affected the outcome of the sentence.
  • Whether the applicant was denied procedural fairness as a result of his legal representatives' conduct.

Decision

The sole ground of appeal (majority: Payne JA and N Adams J):

The majority found that the applicant's legal representation on sentencing fell below the standard expected of practitioners experienced in criminal law (at [40]-[41]). Critically, the applicant had told his legal representatives that he wished to give evidence to express his remorse, but that instruction was not acted upon and he was never advised he had a right to give evidence if he chose (at [42]-[46]). The majority found that neither his barrister nor his solicitor could recall the conference, could not recall any forensic decision being made not to call the applicant, and that no such forensic reasoning was advanced to the Court.

The majority regarded this failing as particularly serious in the context of a pre-sentence report which specifically stated that the applicant had not expressed remorse for his actions or his victims. The applicant did not speak English, had a hearing impairment, and did not have his hearing aids at court. The majority held that in these circumstances the failure to call the applicant to give sworn evidence, as he wished and had a right to do, was a gross failure equivalent to a denial of procedural fairness, and that there was a significant possibility that sworn evidence about his remorse would have made a difference to the sentence imposed (at [43]-[46]). A miscarriage of justice was established.

Dissent (Johnson J):

Johnson J accepted that the legal representation fell short of what would be expected and agreed that an opportunity to give evidence of remorse is an important aspect of sentencing proceedings (at [86]-[88]). However, his Honour was not persuaded that the applicant had demonstrated something of real significance capable of materially affecting the outcome. His Honour found that, given the nature and extent of the professional offending over two months, any evidence of remorse the applicant could have given would not have risen above a formulaic expression of regret made only after capture, and that the submission made by counsel at first instance substantially reflected what the applicant would have said (at [92]-[96]). Johnson J would have granted leave but dismissed the appeal.

Orders Made

  • Application for leave to appeal granted.
  • Appeal allowed.
  • Matter remitted to the District Court for re-sentence.
  • Order varied to permit the sealed confidential affidavit on the file to be opened by order of a judge of the District Court.

Key Takeaways

  • A miscarriage of justice arises at sentencing where an offender's legal representatives fail to obtain instructions as to whether the offender wishes to give evidence and, without making any forensic decision, do not call the offender despite an expressed wish to testify. The Court of Criminal Appeal confirmed this is equivalent to a denial of procedural fairness (at [42]-[46]).

  • The applicable test is whether there is a significant possibility that the acts or omissions of the legal representatives affected the outcome on sentence. Practical injustice, not merely a defect in submissions, must be demonstrated (at [38]-[39], [51]).

  • Unsworn expressions of remorse carry less weight than sworn evidence given at the sentencing hearing. Where a pre-sentence report expressly recorded that a non-English speaking offender had not expressed remorse, the failure to call that offender to give sworn evidence on the point created a significant possibility of a different sentencing outcome (at [43]-[45], [113]).

  • Under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999, remorse is a statutory mitigating factor, but it can be established by evidence beyond sworn testimony, including affidavits and statements to third parties. Courts have nonetheless consistently noted that evidence given by the offender personally carries greater weight (at [110]-[112]).

  • The seriousness of an offender's underlying conduct does not, of itself, displace the right to have subjective circumstances properly advanced at sentencing. As Payne JA stated, the undoubted seriousness of the applicant's offending should not deprive him of an opportunity properly to advance his case on sentence (at [47]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Crimes Act 1900 (NSW), s 112
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 12

Cases
- Alvares v R (2011) 209 A Crim R 297; [2011] NSWCCA 33
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Butters v R [2010] NSWCCA 1
- Craig v R (2018) 92 ALJR 390; [2018] HCA 13
- Hanna v R [2017] NSWCCA 168
- Imbornone v R [2017] NSWCCA 144
- Mun v R [2015] NSWCCA 234
- Newman v R [2018] NSWCCA 208
- Sankar v State of Trinidad and Tobago [1995] 1 WLR 194
- R v Gray [1977] VR 225
- R v Fernando (1992) 76 A Crim R 58
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353;
- R v Whyte (2004) 7 VR 397; [2004] VSCA 5
- Raymond John Munro v Regina [2006] NSWCCA 350
- Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
- Tsiakas v R [2015] NSWCCA 187